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Hearsay
Hearsay
HEARSAY - INTRODUCTION
This fact sheet describes the complicated area of the law of evidence relating
to hearsay, in criminal cases.
DEFINITIONS
Hearsay evidence has been given many definitions as it has been interpreted
and reinterpreted by the courts. A useful starting point is the definition found
in the Civil Evidence Act 1995 section 1, which, although it applies to hearsay
in civil cases, is a clear definition of hearsay based on common law cases,
which form the basis of how hearsay evidence is treated in criminal cases;
For the purposes of the hearsay rules, “statement” applies equally to those
made orally, to those made by a gesture (e.g., nodding of a head) and those
in documents.
Case law has set out guidelines as to when a statement is or isn’t hearsay,
and often lengthy legal argument takes place to determine the exact status of
the statement (the evidence) in order to determine its admissibility.
The reasoning behind this exclusionary rule is that out of court statements
made by others cannot be tested in court by cross-examination to see if they
are true or not, and that the court has not got an opportunity to see the
witness consider his/her demeanour etc.
Res Gestae statements: These are statements made in the heat of the
moment, where it is assumed the person making them has not had time to
concoct an untrue statement. Statements of someone’s intention to do
something may also be admissible evidence that they did actually do that
thing, although the authorities on this question conflict.
STATUTORY EXCEPTIONS
Similarly, where the statement was prepared for the purpose of a criminal
investigation, or for criminal proceedings (e.g., a S.9 witness statement taken
by us during an accident investigation etc.) the statement is only admissible if
the court decides that it is in the interests of justice to admit it (s.26).
The effect of these sections is that where first hand hearsay statements are
made in documents, and the maker is unable to give oral evidence, the
statement will be admitted unless it is not in the interests of justice to do so,
but if the statement was made during a criminal investigation etc. it will not be
admitted unless it is in the interests of justice to do so.
The provisions of ss. 23-26 above do not apply to expert reports, i.e., those
written by a person dealing with matters on which they are or were qualified to
give expert evidence.
The decision to give leave will turn on the contents of the report; the reasons
why the expert cannot give evidence; the risk of unfairness to the accused
from his/her inability to cross-examine the expert etc.
The rules for crown court cases state that expert reports should be disclosed
to the other side as soon as practicable after committal of the accused, and
recent changes to the rules regarding prior disclosure may also affect the
likelihood of a court giving leave to admit an expert report where disclosure
rules have not been complied with.
Computer Records
This section provides that computer records may only be admissible (whether
they are hearsay or not) where there are no reasonable grounds for believing
that the statement is inaccurate because the computer has not been used
correctly, and that the computer was operating properly.
The effect of S.69 is that any party wishing to rely on computer evidence (e.g.,
by oral evidence of an operator, or by a certificate showing reliability of the
computer signed by a responsible person), must prove that the computer was
working and being used properly.
REFERENCES